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Will a hotel eventually be built on the wasteland bordering the Bay of Saint-Jean? Such is the question that may be asked following the decision handed down on April 29 by the Bordeaux Administrative Court of Appeal. After hearing all the parties involved in the case at a hearing on April 1, the president of the Court decided toannul the deliberation of the Collectivité territoriale of August 14, 2024, granting an amending building permit to SAS Beach Real Estate Invest. The purpose of the permit was to build a 38-room hotel (for as many keys) on Saint-Jean Bay, with a total surface area of 12,254 square meters. Initially named l'Etoile, the hotel has since been renamed Émeraude StBarth.
Targeted arguments
The case was brought before the Administrative Court by several companies wishing to contest the amended building permit: Solid Rock Property, Afternoontea, Eden Rock and Lil'Rock Beach. Lil'Rock Beach is the operator of the Nao Beach restaurant in Saint-Jean. It put forward a number of arguments in its application to have the amended building permit of August 14, 2024 annulled: the size of the future construction, which would be likely to affect Nao's operating conditions, the risk of beach erosion linked to the scale of the project, and the risk of groundwater and marine pollution. The Administrative Court of Appeal rejected all these arguments as inadmissible. In fact, it was some of the elements set out in the petition by Solid Rock Property, Afternoontea and Eden Rock that weighed in the Court's decision.
In his briefs, counsel for the petitioning companies focused his argument on the alleged invalidity of the initial building permit, issued in 2019, and all subsequent amending permits. It maintains that this initial permit "was issued as a result of fraudulent maneuvers", and insists that the second modifying permit was granted to the company SAS.t granted to SAS Beach Real Estate Invest "by fraud (...) following an irregular procedure". Even more than the documents devoted to the project's impact study, described as "inadequate", and the alleged "disregard" of the town planning code, the documents also contain a number of "irregularities".This is the legal point that will weigh in the balance, even more so than the documents devoted to the project's impact study, described as "insufficient", and the alleged "disregard" of the town planning code, as well as the consequences of the operation of such a structure on energy consumption.
A permit "obtained by fraud
Thus, after confirming the validity of the decisions previously handed down by the administrative court, while pointing out that the same court had "wrongly" rejected the conclusions of the Collectivité and SAS Beach Real Estate Invest, who argued that a regularization of the initial permit was admissible, the Court accepts the argument that the initial building permit of December 19, 2019 "was obtained by fraud". The Court notes that the documents in the file show that the construction lease contract signed between Beach Real Estate Invest and SCI Émeraude Investissement on October 30, 2018 stipulated that a plot of land could not be built on. However, the Court notes that the initial building permit for a surface area of 12,254 square meters included this plot. For this reason, the Court ruled that "the company must be considered as having engaged in a maneuver likely to mislead the administration, in particular as regards the size of the plot.administration en erreur, en particulier sur la satisfaction des règles de densité des constructions prévues à l'article U6 de la carte de l'urbanisme de Saint-Barthélemy". From this finding, the Court drew the following conclusion: "The initial building permit issued on December 19 was obtained by fraud. As this illegality could not be rectified by the issuance of aan amending building permit, the amending building permits issued on June 3, 2021 and August 14, 2024 can only be annulled. "
"We're not giving up, we're going to open a hotel".
When contacted by JSB, Sébastien Maingourd, Regional General Manager of Le Barthélemy Hôtel & Spa (which is carrying the Émeraude St Barth hotel project through Beach Real Estate Invest), and Sébastien Maingourd, also a representative of the association of St Barth residents, said: "We're not giving up, we're going to open a hotel.galement représentant de l'association des hôtels et villas au sein du Conseil économique, social, culturel et environnemental de Saint-Barth) and the company's lawyer, Maître Xavier de Lesquen, sought further clarification. From the outset, Sébastien Maingourd asserts: "The important thing to make clear is that we're not giving up. We're going to make a hotel. We're going to open a hotel. We're not stopping with this decision. "
"A permit obtained after long discussions
For his part, Xavier de Lesquen considers the decision of the Administrative Court of Appeal to be "very disappointing". He explains: "You have to put this decision in perspective with everything that has happened since 2019. The permit was cancelled in 2021, mainly on the grounds of public safety, partly linked to the planned basement. The court ruled that this element could not be regularized. This deprived us of the possibility of adjusting the project. We appealed at the time, but very quickly our decision was to go ahead and adapt the project, taking into account what the court had said. In discussions with the Saint-Barth Essentiel association (which initiated all the initial protests, editor's note) to get out of this confrontational situation, and with the local authorities. Because, on the one hand, the rules had changed with the new town-planning map, and on the other, our intention was to find a project that met everyone's expectations. "After a period of mediation, the company was granted a new, amended building permit on August 14, 2024. The disappointment stems from the fact that this permit was obtained after lengthy discussions, with a project that had been amply debated," stresses the lawyer. A court decision is always respected. But the court confirms that the tribunal was mistaken in saying that the initial project could not be regularized. It shows that this first judicial error cost us a lot of time. Three years at least. "
Appeal to the Supreme Court
Another point raised by the board is the fraud argument put forward by the project's opponents. It's based on a reinterpretation of the construction lease signed for the project site in Saint-Jean," he points out. The Court obviously followed this reading, but this decision is based on an interpretation of a private law act. A reading that we dispute. "SAS Beach Real Estate Invest intends to appeal the decision.
The Court's interpretation of the construction lease could apply to virtually all leases on the island and beyond," asserts Maître de Lesquen. It's a new position, quite unexpected. So we'll be going to the Conseil d'Etat to check the validity of this position. "
In addition, a new building permit should be submitted "very quickly". After "clarifying things in the construction lease if necessary". But for the lawyer, "it's not a question of changing the project that came out of the mediation". He explains: "If we understand the Court's ruling, the paradox is that all we have to do is clarify the lease to do exactly the same project. Which is a bit odd given the reason for the annulment, since we're talking about fraud. It's all very frustrating, but we're going to get back to work. "Sébastien Maingourd insists: "We're not downhearted. The project is valid, the land is buildable, we're going to get there. "
The local authority "takes note".
Also invited to comment, the local authority stated that it had "taken note of the decision by the Bordeaux Administrative Court of Appeal to annul the building permits issued for the construction of a new building on the site.delivered for the construction of a new hotel on Saint-Jean Bay on a new ground independent of the Collectivité, on the building permit initially granted on December 19, 2019". He added: "The Court's decision is based on a legal interpretation that we will analyze in detail. The reason for this annulment and its legal and administrative implications therefore call for no comment on its part at this stage. "
